Central Administrative Tribunal - Cuttack
Ramesh Chandra Behera vs M/O Railways on 28 May, 2020
1 CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH OA No. 460 of 2015(with MA No. 395/2015) Present: Hon'ble Mr.Gokul Chandra Pati, Member (A) Hon'ble Mr. Swarup Kumar Mishra, Member (J) Ramesh Chandra Behera, aged about 48 years, S/o-Gopal Behera, At-Traffic Colony, Qtr. No, C/34/B, near Kalyan Mandap, Jatni, Dist-Khurda.
......Applicants VERSUS
1. Union of India, represented through the General Manager, East Coast Railway, Bhubaneswar, Khurda Road, Khurda.
2. Divisional Railway Manager, East Coast Railway, Khurda.
3. Senior Divisional Operation Manager, East Coast Railway, Khurda Road, Khurda.
4. Divisional Operation Manager,(G), East Coast Railway, Khurda Road, Khurda.
5. Additional Divisional Manager, East Coast Railway, Khurda.
......Respondents.
For the applicant : Ms. S. Mohapatra, counsel
For the respondents: Mr. B. B. Pattnaik, counsel
Heard & reserved on : 27.02.2020 Order on : 28.05.2020
O R D E R
Per Mr. Gokul Chandra Pati, Member (A)
This OA has been filed with the prayer for the following reliefs:-
i) The order of removal from service dated 17.11.2010 appeal order dated 11/24.4.2014 and 9.5.2014 (annexure-9, 16 and 17) may be quashed.
ii) Respondents be directed to reinstate the applicant in service with all service benefits.
2. Facts in brief are that the applicant while undergoing training for the next promotional post of Goods Guard, fell ill and was treated in Railway Hospital. He returned to Khurda without completing the training and remained under the treatment of a private doctor from 11.6.2009 to 3.3.2010. While under treatment for illness, he was served a charge memo dated 7.9.2009 (Annexure-6 of the OA) alleging absence from duty without informing the competent authority. It is averred in the OA that the disciplinary authority (in short DA) appointed the Inquiry Officer (in short IO) without waiting for the applicant's reply to the charge memo. The IO fixed the date for inquiry, which could not be attended by the applicant as he was under treatment for illness. The inquiry was conducted ex-parte and vide IO's report dated 12.8.2010 (Annexure-8), the charge was proved.
3. On 3.3.2010, the applicant appeared before the respondents with the doctor certificate after which he was admitted in Railway Hospital on 4.3.2010 and discharged from hospital on 9.3.2010. The applicant has enclosed a prescription dated 20.3.2010 (Annexure-5) of the 2 Railway doctor to claim that he was continuing his treatment after his discharge on 9.3.2010. It is averred in the OA that without considering the fact that he was under treatment for illness, the DA imposed the punishment of removal from service vide order dated 17.11.1010 (Annexure-9 of the OA) and the authorities did not consider the medical certificates submitted by the applicant vide order dated 31.10.2010 (Annexure-10)
4. The applicant filed an appeal dated 1.11.2011 (Annexure-11) before the respondent no. 3 as the appellate authority (in short AA) which was rejected vide order dated 8.8.2012 (Annexure-
12) citing delay in filing the appeal. The respondents had also issued order dated 30.9.2011 (Annexure-14) asking the applicant to vacate the railway quarters. The applicant filed OA No. 945/13 which was disposed of by order dated 14.3.2014 (Annexure-15) quashing the order of the AA and directing the respondent no. 4 to reconsider the appeal dated 1.11.2011 through Thereafter, the respondent no. 4 has passed the order dated 9.5.2014 (Annexure-16) to consider and dispose of the appeal dated 1.11.1022 as per the direction of the Tribunal, although he was not the AA. Applicant's appeal was also placed before the ADRM who is the revisionary authority to consider the appeal of the applicant and the same was rejected vide order dated 11/24.4.2014 (Annexure-17 of the OA).
5. The applicant, being aggrieved by the orders at Annexure 9, 16 and 17 of the OA has filed this OA mainly on the following grounds:-
(i) The applicant could not participate in inquiry due to his illness which was a genuine reason, for which conduct of the inquiry ex-parte was violation of natural justice.
(ii) The AA rejected the appeal without considering the documents furnished by the applicant about his treatment, which were ignored by the authorities.
(iii) The punishment imposed is disproportionate on the charge of unauthorized absence for 69 days.
6. The applicant has also filed the MA No. 395/2015 to condone the delay in filing the OA, which was considered along with the OA and is being disposed of by this order. The ground for delay as stated in the MA is his illness for which he was under treatment of Dr. K.K. Mohanty.
7. The Counter filed by the respondents stated that the applicant remained absent from duty without prior intimation to the competent authority. It is also stated that the punishment notice could not be served on the applicant as he was absent in his present and permanent address. Thereafter, he represented that he was under treatment for illness. Although he was residing in the railway quarter, he did not report about his illness to his supervisor and did not visit the railway hospital. As per the para 538 (i) of the Indian Railway Medical Manual (in short IRMM), the applicant was supposed to produce the medical certificate within 48 hours. It is averred that the disciplinary proceeding (in short DP) was initiated for his failure to follow the procedure for reporting sick and he did not submit any reply to the charge-sheet. Although the report of the IO was received by him, he failed to submit any defence statement. It is stated that the IO conducted the inquiry ex-parte as he did not appear in spite of the notices sent to him. It is also averred in the Counter that the medical certificate dated 3.3.2010 (Annexure-3 of the OA) was submitted by 3 him long after issue of the charge memo dated 7.9.2009 which implied that the certificate was false. It is also stated that although the applicant received the charge memo dated 7.9.2009 on 12.9.2009, he failed to give any explanation for his unauthorized absence and hence, the IO was appointed on 22.10.2009 after allowing more than a month time for the applicant to submit his reply. The DA and AA have passed the orders since the charge was proved against the applicant. The applicant had submitted an appeal to the ADRM which was also rejected as no new fact was placed by the applicant to justify his absence. The appeal of the applicant was disposed of by the respondent no. 4 in accordance of the Tribunal's order dated 14.3.2014 (Annexure-15) in OA No. 945/2013.
8. The applicant has filed a reply to the Counter stating that as per the proviso to the rule 6 of the Railway Servants (Discipline and Appeal) Rules, 1968 (in short as Rules, 1968), the offences which will attract removal from service have been indicated. Such offences should be grave in nature and these do not include absence from duty which was not willful and for medical reasons. The judgments of Hon'ble Apex Court in the case of Jagdish Singh vs. Punjab Engineering College and Others, 2009 SCC(L&S), V-II, Page 569 and Krushnakanta B. Parmar vs. Union of India & Others 2012 SCC (L&S) V-I, Page 609 have been cited by the applicant in support of his claims in the OA.
9. Heard learned counsel for the applicant who submitted that the applicant was not aware of the DP and he also filed a written note of submission with the following points:-
(i) The authorities did not consider the illness of the applicant which was intimated to the authorities and he was also admitted in Railway Hospital for the same as stated in his appeal.
(ii) The IO and the AA did not discuss about his medical certificate.
(iii) Charge memo did not disclose the name of the sloe prosecution witness who was later on examined by the IO.
(iv) There was no other charge against the applicant except the present charge memo.
(v) The procedure adopted violated the natural justice.
(vi) Punishment imposed is disproportionate to the gravity of misconduct.
The following judgments have been cited in the written note of the applicant's counsel in addition to the judgment in the case of Krushnakanta B. Parmar (supra):-
i. Kashinath Dixita vs. Union of India, AIR (1986) SC 2 2118 ii. State of Uttaranchal vs. Kharak Singh, AIR 2008 SCW 7507 iii. State Bank of Bikaner and Jaipur vs. Nemi Chand Nalwaya, (2011) 1 SCC(L&S) 721
10. Learned counsel for the respondents was heard. He filed a copy of the letter dated 18.10.2017 of respondent no. 3 with copy of the orders of the IO on 21.11.2009, 7.1.2010 and 20.1.2010 as per the order dated 22.1.2020 of this Tribunal. Learned counsel for the respondents also reiterated the stand taken in the Counter.
11. Before we proceed to examine the OA on merit, it is necessary to consider the MA No. 395/2015 filed by the applicant for condoning the delay in filing the OA. He has taken the ground of his illness. It is also seen that vide order dated 14.3.2014 (Annexure-15) of this Tribunal passed in OA No. 945/13 filed by the applicant, it was held as under:-
4"7....... Hence without expressing any opinion on the validity and sustainability of the order dated 31.10.2011 and the merit of the appeal we quash the order of rejection dated 08.08.2012 and remit the matter to the Respondent No. 3 to consider/reconsider the appeal of the applicant dated 01.11.2011 and communicate the result thereof in a well reasoned order to the applicant within a period of 60(sixty) days from the date of receipt of copy of this order."
In compliance of the order dated 14.3.2014, the respondents passed the order dated 9.5.2014 disposing of the appeal dated 1.11.2011 of the applicant. The ADRM, as revisionary authority has also dispose of the appeal dated 12.10.2012 of the applicant rejecting the same vide the order dated 11/24.4.2014 (Annexure-17 of the OA).
12. We take note of the law laid down by Hon'ble Apex Court in the case of S.S. Rathore vs. State of Madhya Pradesh, reported in 1989 4 SCC 582 that the limitation will be counted from the date of disposal of the appeal/representation if it is provided under the rules. In this case, the appeal dated 12.10.2012 of the applicant has been treated as revision application and the same has been disposed of by the Revisionary Authority vide order dated 11/24.4.2014. The rule 25 of the Railway Servants (Discipline and Appeal) Rules, 1968 provides for the Revision against the order of the AA and the applicant's appeal dated 12.10.2012 (Annexure-13 of the OA), challenging the order of the AA dated 8.8.2012 was disposed of by the revisionary authority treating it as revision application. Applying the law as laid down in the judgment in the case of S.S. Rathore (supra), the limitation in this case has to be counted from the order dated 11/24.4.2014 (Annexure-17) and hence, the OA has been filed within the limitation period as stipulated under the Administrative Tribunals Act, 1985.
13. In the facts and circumstances as discussed above, we are inclined to allow the MA No. 395/2015 and condone the delay if any, in filing this OA by the applicant.
14. While considering the merit of the OA, we note that the charge memo dated 7.9.2009 ((Annexure-6) against the applicant alleges following misconduct:-
" It is reported that the said Sri R.C. Behera working as Asst. Guard at KUR, after arrival from sini on 10.6.09 has been absconding from duty from 11.6.09 without any prior intimation to the competent authority.
Thus he failed to maintain devotion to duty in contravention of Rule No. 3.1 (ii) of R.S. conduct Rule 1966 and rendered himself liable to be taken up under R.S. D&A Rules 1968 as amended from time to time."
15. In para 8 of the Counter, it is averred that although the applicant received the charge memo on 12.9.2009, he did not submit any representation or reply to it. Hence, the action of the DA to appoint the IO in absence of any reply from the applicant intimating the DA about his illness, cannot be faulted. It is also averred that the IO has sent the notice for the inquiry to which the applicant remained silent as there is no averment in the OA that any request or reply was sent to the IO/DA about the inquiry. The reason for not informing the IO about his illness or otherwise for which he was not able to attend the inquiry, has not been furnished by the applicant in his pleadings. Hence, the action of the IO to proceed with the inquiry ex-parte cannot be disputed by the applicant at this stage. Hence, the ground of violation of natural justice in the inquiry or the DP as stated in the OA, has no merit.
516. It is noticed that the respondents have not complied the Tribunal's order dated 14.3.2014 for reconsideration of the appeal dated 1.11.2011 in accordance with the provisions of the Rules, 1968. Under the said Rules, 1968, the appeal is to be considered and disposed of by the AA who is the stipulated authority under the rules as AA. But the appeal dated 1.11.2011 has been reconsidered and disposed of by the DA (respondent no. 4) on the ground that the Tribunal's direction was to him to dispose of the appeal. Since under the Rules, 1968 the competent authority to reconsider the appeal dated was the respondents no. 3 of this OA, the authorities were required to take steps as per law for modification of the order dated 14.3.2014. Alternatively, the DA who was directed by the order dated 14.3.2014 to consider the appeal could have passed an order stating the provisions of law and placing the matter before the competent AA to reconsider and dispose of the appeal as per the direction of the Tribunal. Instead, the DA disposed of the appeal dated 1.11.2011, which implies that the AA has not reconsidered the appeal dated 1.11.2011 after quashing of his order dated 8.8.2012 by the order dated 14.3.2014 of the Tribunal in OA No. 945/13. Hence, we are of the view that there has been violation of the rules in disposal of the appeal dated 1.11.2011 since the order dated 9.5.2016 (Annexure-16) was not passed by the competent authority and the said appeal deserves to be reconsidered by the competent authority as per the provisions of law.
17. Regarding the ground of disproportionate punishment, we take note of the fact that there is nothing in the charge memo about any past misconduct of the applicant and there is no record of any punishment imposed on the applicant. No sickness certificates or intimation about his illness was furnished by the applicant within 48 hours as required under the paragraph 538 of the IRMM (Annexure-R/1) and the certificate dated 3.3.2010 (Annexure-3) was furnished by the applicant belatedly. But late submission of the medical certificate will not imply that the certificates were false or the plea of illness was incorrect without undertaking an appropriate inquiry to find out genuineness of the claim of illness. The applicant has cited the judgment in the case of Krushnakanta B. Parmar (supra), in which the concerned employee was also proceeded against for unauthorized absence and violation of conduct rules. In that case, it was held by Hon'ble Apex Court as under:-
"16. The question whether `unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.
17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be wilful.
18. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant."
18. The facts of the cited case Krushnakanta B. Parmar (supra) are similar to the present OA as in both the cases the unauthorized absence was treated as failure of devotion of duty and the law 6 laid down in the aforesaid judgment will squarely cover the instant OA in which the applicant was also charged for failure to maintain devotion duty due to unauthorized absence from duty without informing the competent authority (vide the misconduct at paragraph 14 of this order). Applying the ratio of the judgment to the instant OA, it was necessary for the DA to establish that the absence from duty from 11.6.2009 was wilful on the part of the applicant or the medical certificate produced by the applicant to claim that he was under treatment during the period in question was not genuine. There is nothing in the inquiry report dated 12.8.2011 of the IO at Annexure-8 of the OA to show that the claim of the applicant's illness and/or the medical certificate furnished was incorrect or not genuine. Hence, the conclusion of the IO and the DA that the charge of failure to maintain devotion to duty was proved against the applicant is legally not sustainable and it violates the law laid down in the judgment in the case of Krushnakanta B. Parmar (supra).
19. In the case of Nemi Chand Nalwa (supra), Hon'ble Apex court, reiterating the principle of judicial review in disciplinary proceedings, has held as under:-
"6. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (vide B. C. Chaturvedi vs. Union of India - 1995 (6) SCC 749, Union of India vs. G. Gunayuthan - 1997 (7) SCC 463, and Bank of India vs. Degala Suryanarayana - 1999 (5) SCC 762, High Court of Judicature at Bombay vs. Shahsi Kant S Patil - 2001 (1) SCC 416)."
20. In view of the settled law as extracted above, it is not open for this Tribunal to reassess the evidence except when the findings of the authorities if there is a violation of the statutory regulations/rules or these are perverse and based on no evidence. As discussed earlier, the finding of the IO and DA that the charge of failure to maintain devotion to duty against the applicant has been held to be proved is based on no evidence to show that his unauthorized absence from duty was wilful. Further, the impugned order dated 9.5.2014 (Annexure-16 of the OA), rejecting the appeal by an authority who is not competent under the Rules, 1968 to dispose of the appeal, violated the provisions of the Rules, 1968. As discussed earlier, the severity of the charge as per the memo dated 7.9.2009 is diluted since it is not proved that the unauthorized absence from duty resulted in failure to maintain devotion of duty. It appears that the applicant's fault is his failure to inform the authorities about his illness within 48 hours of illness on 11.6.2009 as stipulated under the para 538 of the IRMM (Annexure-R/1). We also take note of the fact that there is no record of any past misconduct against the applicant since there is no such averment in the pleadings of the respondents. In view of the facts and circumstances of the case, we are of the view that the finding of the DA that the charges are proved is not based on evidence on evidence and the punishment of 'removal from service' imposed on the applicant is 7 shockingly disproportionate to the misconduct proved against the applicant. Applying the ratio of the judgment in the case of Nemi Chand Nalwa (supra), there are justifications for this Tribunal to interfere in the matter on these grounds.
21. In view of the discussions in the preceding paragraphs, the order dated 17.11.2010 (Annexure-9 of the OA) of the disciplinary authority imposing the punishment of removal from service is quashed. As a consequence, the order dated 9.5.2014 (Annexure-16) rejecting the appeal dated 1.11.2011 (Annexure-11) of the applicant and the order dated 11/24.4.2014 (Annexure-17) passed by the revisionary authority are also quashed and the matter is remitted to the disciplinary authority/respondent no. 4 to reconsider the matter afresh in accordance with the law from the stage of the sub rule 2(a) of the rule 10 of the Railway Servants (Discipline and Appeal) Rules, 1968. The applicant will be at liberty to submit a representation on the inquiry report of the IO to the disciplinary authority under the said sub rule 2(a) of the rule 10 of the Rules, 1968 within 15 days from the date of receipt of a copy of this order. The disciplinary authority will proceed in the matter after due consideration of the applicant's representation, if submitted within the time as stated above and pass an appropriate speaking and reasoned order under the rule 10 of the Railway Servants (Discipline and Appeal) Rules, 1968, copy of which will be communicated to the applicant within three months from the date of receipt of a copy of this order. Taking into consideration the findings recorded in paragraph 20 above, if it is decided by the disciplinary authority to impose any penalty on the applicant after reconsideration of the matter as above, then it will be a penalty under the rule 6 of the Railway Servants (Discipline and Appeal) Rules, 1968 except the penalties specified at sub rules (vii), (viii) and (ix) of the aforesaid rule 6. It is made clear that we have not expressed any opinion about the validity of the inquiry report while passing this order since the matter is being remitted to the disciplinary authority to reconsider the matter on receipt of the applicant's representation on the inquiry report. It is further clarified that till a fresh order is passed by the disciplinary authority as per the above directions, the services of the applicant will be regulated as per the rule 5(4) of the Railway Servants (Discipline and Appeal) Rules, 1968.
22. The MA No. 395/2015 is allowed in terms of the paragraph 13 and the OA is allowed in terms of the paragraph 21 of this order. There will be no order as to cost.
(SWARUP KUMAR MISHRA) (GOKUL CHANDRA PATI)
MEMBER (J) MEMBER (A)
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